Official Opinion 96-7

March 26, 1996

To:

Chancellor University System of Georgia

Re:

Where there is governmental oversight or involvement, a student-run newspaper at a state educational institution is subject to the free speech requirements of the First Amendment and, therefore, may not exclude materials from publication based on their content absent a compelling state interest for doing so.

Your office has requested my opinion as to whether the student-run newspaper at the Georgia Institute of Technology may refuse to publish an advertisement because the contents of the advertisement may be "hurtful" to some of the paper's readers. Where, as here, there is governmental oversight or involvement, a student-run newspaper at a state educational institution is subject to the free speech requirements of the First Amendment and, therefore, may not exclude materials from publication based on their content absent a compelling state interest for doing so.

The Georgia Institute of Technology, through a March 1, 1996, letter to your staff, has requested advice regarding the publication of certain advertisements in the campus newspaper, The Technique. Essentially, Georgia Tech maintains that the advertisements contain "hurtful words" and therefore they

should be permitted not to publish the advertisements without modification. While the information provided by Tech is somewhat incomplete regarding the nature of its relationship with The Technique, it is my opinion that the advertisements should be published in this instance.

The facts in relation to this particular question, as they have been explained to me, appear to be as follows. The Technique is a student-run newspaper on the campus of Georgia Tech. The newspaper apparently receives funding through mandatory student fees assessed against all of Tech's students and is also apparently run by the students themselves with the oversight of a faculty advisor.

On October 6, 1995, a recognized student organization, The Campus Crusade for Christ, submitted for publication in The Technique two different advertisements dealing with homosexuality. The editorial board of the newspaper, after consultation with their faculty advisor and with employees at Tech, one of whom is an attorney, refused to run these proposed advertisements or any alternatives to them without the deletion of "hurtful words" contained in the ads.

While no one has identified for me the specific words which are "hurtful," the President of Georgia Tech explained in a February 26 letter to an attorney representing Campus Crusade that these words were ones which were "commonly used to derogatorily describe homosexuals." This vague description was repeated in Tech's March 1 letter to you, describing the "hurtful words" as, "expressions often used to derogatorily describe homosexuals or to cast them in a bad light."

I have reviewed the advertisements in question. One presents a photograph of a young man, identified as "John Paulk" and as a "former homosexual, male prostitute and female impersonator." Headlined above this photograph in relatively large type is the statement:

Growing up, I heard it all . . . sissy, queer, fag. Naturally, I believed I was born gay.

There is then a paragraph of text followed by the statement, "There is another way out," the logo of an organization called "Every Student's Choice" and the provision of a toll-free

telephone number. In context, I am led to believe that the "hurtful words" identified by Tech must refer to "sissy, queer, fag" as I recognize that these are words that some people might find inappropriate or offensive. I can find no other words in the text which might be perceived to "derogatorily describe homosexuals."

The second advertisement is in approximately the same format and layout. This advertisement presents a photograph of a young woman identified as "Anne Paulk" who is described as being a "former lesbian." The headline in this advertisement states:

As a lesbian, I found hurt people just wanting someone to love. As a Christian, I found loving people just wanting to heal my hurt.

A review of the text of this ad does not reveal to me any terms which have been used to "derogatorily describe homosexuals."

Other copies of alternative advertisements have been provided but it is unclear from the record what role, if any, these play in the question posed by Tech. As such, I will confine my comments to the advertisements identified above.

The issue presented here is whether a student-run newspaper at a state university, funded by mandatory student fees, may refuse to publish the advertisements in question or, conversely, may either the state or a third-party force the student newspaper to publish these ads if the editors of the newspaper choose not to do so? These questions, which are really just mirror images of the same issue, present serious questions regarding the applicability of the First Amendment in an educational and editorial setting.

It is uncontroverted that a state government, including a state-run university, may not engage in viewpoint based discrimination directed against speech in the awarding of state-funded benefits. Rosenberger v. Rector & Visitors of the Univ. of Va., U.S. , 115 S. Ct. 2510 (1995).

The first danger to liberty lies in granting the State the power to examine publications to determine whether or not they are based

on some ultimate idea and if so for the State to classify them. The second, and corollary, danger is to speech from the chilling of individual thought and expression. That danger is especially real in the University setting, where the State acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition.

Rosenberger, 115 S. Ct. at 2520. Additionally, I have found no legal doctrine which would permit the state in any capacity to censor publications based upon the use of "hurtful words."

Therefore, clearly if the situation were one where the Campus Crusade for Christ had applied for recognition as a student organization, including requesting funding or use of facilities as a recognized student organization, Georgia Tech could not refuse this request because it disagreed with either the religious, social, or political views of the organization. This in fact has been the law in Georgia since long before Rosenberger. See Wood v. Davison, 351 F. Supp. 543 (N.D. Ga. 1972) (The University of Georgia held to have violated students' First Amendment rights of free speech, assembly, and association in denying homosexual students facilities for a conference and dance).

However, this situation goes beyond merely providing University facilities or funding to the group in question. Instead, the First Amendment right to a free press is also implicated because a newspaper, even a student-run newspaper, has such a right. Mississippi Gay Alliance v. Goudelock, 536 F.2d 1073 (5th Cir. 1976), cert. denied, 430 U.S. 982 (1977).{1} The Mississippi Gay Alliance case (hereafter "MGA") is particularly instructive here. In MGA, an off-campus homosexual group sued Mississippi State University and others seeking to compel the student newspaper, The Reflector, to publish an advertisement for the group. Id. at 1074. The advertisement contained information regarding meeting times and a short summary of the services offered by the MGA, none of which were obscene or overtly controversial. Id.

The editor of The Reflector refused to accept the tendered paid advertisement, leading to a law suit which alleged that the paper and the school had violated MGA's First Amendment rights to free speech and requesting an order requiring publication. Id. Both the district court and the Fifth Circuit denied these requests and found against MGA. Id.

Essentially the Fifth Circuit concluded that, in the case of The Reflector, the rejection of the advertisement was not state action. Id. at 1075. In affirming this conclusion reached by the district court, the appellate court stated:

Relying on Bazaar v. Fortune, [489 F.2d 225, aff'd, 489 F.2d 225 (1973) (en banc)] and Miami Herald Publishing Company v. Tornillo, [418 U.S. 241 (1974)], it was held that in the absence of state action the student newspaper editor could "accept or reject such material as he saw fit".

While it is true that the student newspaper is supported, in part, by activity fees collected by the University, the students elect the editor. The complaint did not allege and the stipulations did not assert that University officials supervise or control what is to be published or not published in the newspaper.

As a matter of fact, in the context of the matter before us, this Court has held that the University authorities could not have ordered the newspaper not to publish the Gay Alliance advertisement, had it chosen to do so, see Bazaar v. Fortune, supra.

Id. at 1075. The court then noted that under Tornillo, supra, the choice of what material goes into a newspaper constitutes the exercise of editorial control and judgment and there had never been a demonstration as to how government could regulate

this crucial process consistent with the First Amendment guarantees of a free press. Id.

Given this precedent, the Fifth Circuit concluded:

Since there is not the slightest whisper that the University authorities had anything to do with the rejection of this material offered by this off-campus cell of homosexuals, since such officials could not lawfully have done so, and since the record really suggests nothing but discretion exercised by an editor chosen by the student body, we think the First Amendment interdicts judicial interference with the editorial decision.

Id. My research indicates that this is still the law within the Eleventh Circuit. In fact, counsel for the Campus Crusade also relies upon Bazaar v. Fortune, upon which MGA is founded, in his February 16 letter to President Clough.

Notwithstanding the above and foregoing, I feel compelled to point out the following. In MGA there is an extremely well-researched and scholarly dissent by Judge Goldberg which makes many of the arguments now presented by Campus Crusade. This includes the concept that a student newspaper at a state school is in fact a "public forum" provided by the state and therefore cannot, absent specific compelling reasons, reject an advertisement based on content. MGA at 1080-84 (Goldberg, J., dissenting).

Additionally, the dissent argues that the absence of affirmative activity by University officials in excluding the ad in question does not end the inquiry into whether there is state action. Id. at 1084-85. Instead, the dissent argues that an official newspaper of a state school which receives the majority of its funding from student fees and which is printed and distributed with state assistance does present state action. Id. The dissent would also limit the rights of student editors to merely editing and not being able to reject ads based on content. Id. at 1085-87.

I caution you that it is not uncommon in the law for yesterday's dissent to be tomorrow's majority opinion. A

number of cases decided after MGA have either made reference to Judge Goldberg's dissent or have picked up on the idea that the determination of "state action" is an issue to be decided on a case-by-case basis, so there is no generalized recognition that a student editor may at any time reject any material in the exercise of that editor's First Amendment right to a free press. See, e.g., Sinn v. Daily Nebraskan, 829 F.2d 662, 666 (8th Cir. 1987); Estiverne v. Louisiana State Bar Ass'n, 863 F.2d 371, 375 (5th Cir. 1989) ("The presence or absence of state action turns instead on the degree of control that the state agency exercises over the publication.").

I am concerned that in this matter there is more than a "whisper" of state involvement. See MGA at 1075. The mere fact that I am providing this advice emphasizes that point.

As I pointed out above, it is my understanding that the decision to exclude these advertisements was not made by the student editor in the exercise of his or her First Amendment rights to free press, but instead the decision appears to be one based solely on content of the advertisement and a judgmental determination that some words contained in the advertisements were "hurtful." Again I point out that there is no legal basis whatsoever for content-based censorship where particular words might hurt someone's feelings.{2} Indeed, if this principle were to be applied to the press, there would be very little news coverage in the political arena at all.

Additionally, it appears that the decision not to run these advertisements was made in consultation with the faculty advisor to the paper and with employees of Georgia Tech, including one who is an attorney. The President of the University has become involved, arguing the correctness of the newspaper's decision, and now both the Board of Regents and the Attorney General have also been drawn into this inquiry. Indeed, Georgia Tech now desires to adopt University regulations which would allow "reasonable, lawful regulation of commercial speech proposed for The Technique."

Given this factual situation and the law in this area, I advise you and Georgia Tech that a strong argument can be made in this case that there is "state action." Once that threshold is crossed, then the holding of MGA is inapplicable and the newspaper's actions become attributable to the state and its employees.

Given all of this, it is my official opinion that where there is governmental oversight or involvement, a student-run newspaper at a state educational institution is subject to the free speech requirements of the First Amendment and, therefore, may not exclude materials from publication based on their content absent a compelling state interest for doing so.

Prepared by:

DENNIS R. DUNN
Senior Assistant Attorney General

{1} Decisions of the former Fifth Circuit handed down before October 1, 1981, have been adopted as binding precedent for the Eleventh Circuit in the case of Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

{2} There is a constitutional doctrine in interpreting the First Amendment which does permit the restriction of "fighting words" and there is, as Justice Holmes pointed out, no right to cry "fire" in a crowded theater. See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).